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I’m not talking fresh air. I’m talking about the municipal zoning God given right to build to the heavens.

The recent plan for 3rd & Colorado – a residential tower that I’m excited to see more of, if not disappointed that it isn’t taller – reminded me of a policy discussion that lost steam a few years back focused on preservation of the Warehouse District. Back in 2009 influencers with a preservationist slant vocalized concern that the charm of the Warehouse District would eventually lead to its demise unless measures were taken to limit height and density in the district.

Proposed Warehouse District (2009)

Back then, one of the recommended approaches to preservation was facilitating the Transference of Development Rights (TDR), aka. “air rights.” That seemed like a smart way to handle preservation of low-rise historic-ish buildings sitting on highly desired CBD building sites. Creating a market for air rights in Austin would, in theory, enable property owners to capture the value of their dirt, without having to build on the site, thus able to preserve historic buildings.

The topic was dropped in 2011 when the Downtown Austin Plan (DAP) was formally adopted featuring a “density bonus” program. Recently, I’ve been participating in the DAA’s CodeNEXT task force, and we’re discussing policies that would encourage building tall on small CBD sites, notably sites that are mid-block. With CodeNext happening, this seems like a good time to rekindle the discussion.

Why would a builder want to buy air rights?

additional density

protect views

Why would a property owner want to sell air rights?

property is too small, oddly shaped, or mid-block thus more difficult to develop

capture value without having to redevelop

Why would a city want to permit air rights to be transferred?

additional density

encourage more development on smaller lots

historic preservation

That last question is the one I can’t reconcile completely. The City of Austin uses the Density Bonus program to subsidize affordable housing.

Would an air rights market, in its simplest form, circumvent those fees-in-lieu [of building affordable housing] from being collected? [Read more…]

[Editor’s note: Very special thanks to Terrence Henry for making this interview happen. TL;DR: Niran Babalola’s message challenges Austin “progressivism” by highlighting systemic discrimination through Austin’s land use laws. The message relates to modern policies and recent votes from City leaders.]

Niran Babalola is in love with cities.

“They’re amazing things,” he says, “where all these people come together in one place.” Babalola, the head of the housing and land use reform group DesegregateATX, is an Austin native who has spent much of his free time in recent years reading everything he can to understand cities better and what makes them work. And he’s found that the way Austin’s does things — whether it’s transportation, land use or housing affordability — tends to ignore the best practices of others and ends up only serving a select few.

“We’ve decided in this city not to govern for the have-nots,” Babalola says, pointing to land use policies that favor expensive single-family homes over denser, more diverse types that serves a wider range of people.

“We are the most economically segregated city in America, the only city with a declining African-American population.”

Over a long conversation (and a few cups of coffee) this summer downtown, Babalola told me the story of how Austin’s promise for all has been betrayed by its protectionism for the privileged few. A condensed version of our conversation follows:

TH: So how did we get to where we are today?

If you ask economists about how economic segregation occurs in cities, they’ll tell you it’s the policies of a city that makes it happen. They’ll point to studies showing how restrictive zoning laws cause economic segregation. The harder you make it to build homes, the more economic segregation you end up getting, especially in a city with a thriving economy like Austin’s. If you limit the number of homes, all you end up doing is pushing people out.

Niran Babalola

If you want to include all kinds of people, you have to include their homes. You have to include them in your neighborhood. Otherwise you’ll be pushing them further and further away from all the public investments we’ve made together.

If you look at the laws in effect in Austin’s central neighborhoods, in the vast majority of them, they say you can only build the most expensive type of housing: a single-family home with a big yard. Mixed-income neighborhoods in the core of the city are essentially illegal. But if you look at the statistics about what kinds of homes people live in, it will show you that the vast majority of white families live in single-family homes in Austin, a minority of black and hispanic families live in single-family homes. It’s not just economic segregation, it’s racial segregation. And we’re surprised we have an affordability problem!

You’ve likely stumbled across the phrase “CodeNext” somewhere on the interwebs, figured it was another facacta Austin planning scheme, and so you just jumped back to reading Deadspin.

CodeNext (single word) is the multi-year effort to redevelop Austin’s Land Development Code, also called the LDC. In theory, the LDC codifies what can be built, where it can be built, and how it must be built.

The planning stages are almost complete, and a draft will be released to the public in January. God only knows what will come after the release, given the myriad of special interests that have a stake in shaping what parts of the draft would stay or go. But, we’ll deal with that in 2017.

As a result, CodeNext will directly affect your life in three key areas:

housing affordability

transportation

the “look & feel” of the city

In the most literal sense, you will see and feel the results of CodeNext as you go about your future life in Austin.

More subjectively, you should care because one day you may own property. On that day you will realize you’ve morphed into a gray-haired republican, realize that property taxes are a bitch, you’ll hate that the big government tells you what you can/can’t do with your own damn property, and that Reagan had some not-so-bad ideas about small government. OR, you’re one of those perpetual renters (media calls you “Millennials”) who can only afford to live 13 gridlocked miles from downtown Austin, and you’re rightfully indignant observing all the undeveloped land in Central Austin where density is blocked by zoning in Dixiecrat fashion.

I wanted to try to explain it in the context of why this effort is underway.

The laws passed by City Council are inked in the “Code of Ordinances” also known as “city code.” These are the laws of the land in the city limits. For example, the law that you can’t text and drive is written into the “city code”. (§ 12-1-34 to be exact. The symbol “§” is a character often used to refer to a particular section of the law.)

The city code is organized by 30 “Titles” of which Title 25 is Land Development Code, or LDC, which regulates development within the city’s planning and zoning jurisdiction.

Follow me so far? Good because here is where it gets messy.

The basic structure of the existing LDC has four major structural levels below Title, which are: Chapter (such as § 25-1); Article (such as § 25-1-1); and finally Section (such as § 25-1-1(a)).

This organizational structure has been amended over the past 30 years with additional layers added, such as: “Division”, “Sub-chapter”, and “Subpart”. While these new layers have been added, the methodology for numbering the layers for ease of referencing has not been updated, making the numbering system ineffective at allowing a user to understand where in the hierarchy of the LDC the reference exists. Hence the shifting labyrinth depending on who you’re talking to.

Moreover, Austin has 39 base districts described in the Land Development Code that “zone” parts of town for development. For example, they might be zoned “SF-1” for “single family – large lot” or SF-6 for “townhouse or condominium”. However, when you add all the layers that can be overlaid on top of the base zones, you end up with almost 400 possible different combinations!

Revamping the LDC is essential because navigating Austin’s code is like walking through a labyrinth, and depending on who you speak with in which city department and how they interpret one piece of code versus another conflicting piece, the labyrinth is always shifting. Not good.

Summary

Austin seems to do more planning than actually doing. At times, keeping up with all the planning efforts can be demoralizing, when most of us simply want pragmatic and moral leadership at City Hall. Truthfully, the point of this post was so that I could answer: “why I should care about CodeNext?” If you live in Austin, then CodeNext will touch something in your life… where you live, where you work, what that building looks like, and how you get there.

Whatever is adopted will certainly be better than the labyrinth of laws and plans that citizens of Austin currently must navigate in order to comply. Hopefully, the next time you see “CodeNext” it won’t be a nebulous city process, and instead, you’ll understand why people are passionate about it when the draft is released this coming January.

A long time downtown Austin resident and owner of TOWERS Realty, Jude has served on the Board of the Downtown Austin Alliance (DAA), Downtown Austin Neighborhood Association (DANA), and as a commissioner with the City of Austin Downtown Commission.